Blake defends trauma center in court

Published: Tuesday, May 14, 2013 at 8:20 p.m.

Last Modified: Tuesday, May 14, 2013 at 8:20 p.m.

TALLAHASSEE - Blake Medical Center was back in court on Tuesday, battling its rivals over its ability to continue to operate a trauma center in Bradenton.

This time the forum was the 1st District Court of Appeal and the immediate issue was whether hospitals with competing trauma centers — including Tampa General, Bayfront Medical Center in St. Petersburg and Shands Jacksonville — have the legal standing to challenge the approval given to Blake, along with trauma centers in Pasco and Clay counties. All of the new trauma centers are operated by HCA-affiliated hospitals.

A lawyer representing Tampa General and other older trauma centers told the three-judge appellate panel that the hospitals have the right to challenge Blake and other trauma centers because of their impact on finances and patient volume.

Jeffrey Frehn said the centers, which require highly skilled personnel to treat severely injured patients, are expensive to maintain and operate — in part because the staff has to remain on call for 24 hours a day even if patients are not being treated.

“The problem is if you approve too many trauma centers, one, it drives up the cost,” Frehn said. “But, two, you don't have any revenue coming in the door. So you have this gigantic fixed cost that is sitting there, that you have to pay for, and then suddenly we have three new trauma centers that are approved that are going to divert patients.”

Frehn said the Bayfront trauma center is expected lose 40 percent of its patients because of competition from Blake and Regional Medical Center Bayonet Point in Pasco County.

But the judges also heard from lawyers from the state Department of Health, which approved Blake's trauma center, and the HCA hospitals. They said the new trauma centers were properly approved.

They argued that there was a distinction between the Health Department's approval of new trauma centers — based on the hospitals meeting extensive quality of care criteria — and the statewide procedure for determining the need for new trauma centers.

Jennifer Tschetter, the agency's general counsel, said the competing trauma centers were seeking an overly broad definition of their right to challenge by asserting that “any hospital” could challenge the approval of a new trauma center. She said it could lead to such “absurd” results as a hospital in Pensacola challenging a trauma center in Miami.

She said the department's interpretation of the law was that only other applicants for a trauma center could challenge the approval process.

Judge James Wolf said he understood not allowing remote hospitals to challenge the decision, but he questioned whether hospitals that were “adversely affected” by the new trauma centers had a better argument.

“If Tampa General or Shands goes under, is that going to be good for the patients?” he asked.

Stephen Ecenia, a lawyer representing Blake and other HCA-affiliated hospitals, said the economic or non-economic factors were not part of the approval process for a trauma center license. Instead, Ecenia said the HCA hospitals followed the procedure in which the state the determined the need for new centers in various regions and then applied, while spending several years and “millions of dollars” in justifying the ability of the hospitals to open trauma units.

Ecenia said allowing the other hospitals a chance to file multiple challenges would discourage hospitals from opening new centers.

No date is set for the appellate court to rule.

If the court says the hospitals do not have the right to challenge the state decision, the case will be over.

If the competing trauma hospitals are allowed to continue their challenge, the case will return to an administrative hearing where Ecenia said Blake and the other new trauma centers would have to show they met the criteria for approval.

“I don't think we're going to have to discontinue operating,” he said.

Blake is designed to treat severely injured patients from Manatee, Sarasota and DeSoto counties.

Tuesday's hearing was part of a complex legal fight that began when the state in 2011 approved Blake and the other two HCA-affiliated trauma centers in Pasco and Clay counties. Late last year, Health Department officials also approved another HCA trauma center in Ocala, which is part of a separate legal challenge.

Last November, the 1st DCA upheld an administrative judge's ruling that invalidated the rule state officials used to grant new trauma centers. The Health Department is in the process of developing a new rule.

Meanwhile, the Legislature entered the fray this spring, with lawmakers backing a bill that would create a trauma center at Fort Walton Beach Medical Center, which is in the district of Senate President Don Gaetz, R-Niceville.

The bill has not been acted on yet by Gov. Rick Scott, who is a former HCA executive.

<p><em>TALLAHASSEE</em> - Blake Medical Center was back in court on Tuesday, battling its rivals over its ability to continue to operate a trauma center in Bradenton. </p><p>This time the forum was the 1st District Court of Appeal and the immediate issue was whether hospitals with competing trauma centers — including Tampa General, Bayfront Medical Center in St. Petersburg and Shands Jacksonville — have the legal standing to challenge the approval given to Blake, along with trauma centers in Pasco and Clay counties. All of the new trauma centers are operated by HCA-affiliated hospitals.</p><p>A lawyer representing Tampa General and other older trauma centers told the three-judge appellate panel that the hospitals have the right to challenge Blake and other trauma centers because of their impact on finances and patient volume.</p><p>Jeffrey Frehn said the centers, which require highly skilled personnel to treat severely injured patients, are expensive to maintain and operate — in part because the staff has to remain on call for 24 hours a day even if patients are not being treated.</p><p>“The problem is if you approve too many trauma centers, one, it drives up the cost,” Frehn said. “But, two, you don't have any revenue coming in the door. So you have this gigantic fixed cost that is sitting there, that you have to pay for, and then suddenly we have three new trauma centers that are approved that are going to divert patients.” </p><p>Frehn said the Bayfront trauma center is expected lose 40 percent of its patients because of competition from Blake and Regional Medical Center Bayonet Point in Pasco County.</p><p>But the judges also heard from lawyers from the state Department of Health, which approved Blake's trauma center, and the HCA hospitals. They said the new trauma centers were properly approved.</p><p>They argued that there was a distinction between the Health Department's approval of new trauma centers — based on the hospitals meeting extensive quality of care criteria — and the statewide procedure for determining the need for new trauma centers.</p><p>Jennifer Tschetter, the agency's general counsel, said the competing trauma centers were seeking an overly broad definition of their right to challenge by asserting that “any hospital” could challenge the approval of a new trauma center. She said it could lead to such “absurd” results as a hospital in Pensacola challenging a trauma center in Miami.</p><p>She said the department's interpretation of the law was that only other applicants for a trauma center could challenge the approval process.</p><p>Judge James Wolf said he understood not allowing remote hospitals to challenge the decision, but he questioned whether hospitals that were “adversely affected” by the new trauma centers had a better argument.</p><p>“If Tampa General or Shands goes under, is that going to be good for the patients?” he asked.</p><p>Stephen Ecenia, a lawyer representing Blake and other HCA-affiliated hospitals, said the economic or non-economic factors were not part of the approval process for a trauma center license. Instead, Ecenia said the HCA hospitals followed the procedure in which the state the determined the need for new centers in various regions and then applied, while spending several years and “millions of dollars” in justifying the ability of the hospitals to open trauma units.</p><p>Ecenia said allowing the other hospitals a chance to file multiple challenges would discourage hospitals from opening new centers.</p><p>No date is set for the appellate court to rule.</p><p>If the court says the hospitals do not have the right to challenge the state decision, the case will be over.</p><p>If the competing trauma hospitals are allowed to continue their challenge, the case will return to an administrative hearing where Ecenia said Blake and the other new trauma centers would have to show they met the criteria for approval.</p><p>“I don't think we're going to have to discontinue operating,” he said.</p><p>Blake is designed to treat severely injured patients from Manatee, Sarasota and DeSoto counties.</p><p>Tuesday's hearing was part of a complex legal fight that began when the state in 2011 approved Blake and the other two HCA-affiliated trauma centers in Pasco and Clay counties. Late last year, Health Department officials also approved another HCA trauma center in Ocala, which is part of a separate legal challenge.</p><p>Last November, the 1st DCA upheld an administrative judge's ruling that invalidated the rule state officials used to grant new trauma centers. The Health Department is in the process of developing a new rule.</p><p>Meanwhile, the Legislature entered the fray this spring, with lawmakers backing a bill that would create a trauma center at Fort Walton Beach Medical Center, which is in the district of Senate President Don Gaetz, R-Niceville.</p><p>The bill has not been acted on yet by Gov. Rick Scott, who is a former HCA executive.</p>